John A. Lance, Debra L. Lance, F.D. Franks and Helen Franks v. Judith and Terry Robinson, Gary and Brenda Fest, Virginia Gray and Butch Townsend ( 2015 )

ACCEPTED
04-14-00758-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/8/2015 10:55:18 AM
KEITH HOTTLE
CLERK
NO. 04-14-00758-CV
IN THE COURT OF APPEALS FILED IN
FOURTH COURT OF APPEALS DISTRICT OF 4th COURT OF APPEALS
TEXAS
SAN ANTONIO, TEXAS
SAN ANTONIO, TEXAS
7/8/2015 10:55:18 AM
KEITH E. HOTTLE
Clerk
JOHN A. LANCE, DEBRA L. LANCE,
F.D. FRANKS AND HELEN FRANKS
APPELLANTS
v.
JUDITH AND TERRY ROBINSON, GARY AND BRENDA FEST,
VIRGINIA GRAY, BUTCH TOWNSEND AND
BEXAR-MEDINA-ATASCOSA COUNTIES WATER CONTROL AND
IMPROVEMENT DISTRICT NO. 1
APPELLEES
From the 198th District Court ofBandera County, Texas
Trial Court No. CV-12-0100209
Honorable 1Vl. Rex Emerson, Judge Presiding
BRIEF OF APPELLEE BEXAR-IVIEDINA-ATASCOSA COUNTIES
\VATER CONTROL & IMPROVEMENT DISTRICT No. 1
GOSTOMSKI & HECKER, P.C.
Edward T
BEXAR-MEDINA-ATASCOSA
COUNTIES WATER CONTROL
IMPROVEMENT DISTRICT l
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
INDEX OF AUTHORITIES.......... . ..... . ................................... 11
STATEMENT OF THE CASE ................................................................................ iii
ISSUES PRESENTED ............................................................................................. iii
1. The trial court did not err by granting summary, declaratory judgment under
Chapter 37 of the Texas Civil Practice & Remedies Code, and the judgment must
be aftirrned ............................................................................................................ iii
2. The trial court did not abuse its discretion by awarding attorney fees to the
Bexar-1\tledina-Atascosa Counties Water Control & Improvement District No. 1,
and sufficient evidence supported the amount of the award ................................. iii
STATEMENT OF FACTS ....................................................................................... 1
SUMMARY OF THE ARGUMENT ....................................................................... 5
ARGUMENT ............................................................................................................ 6
1. The trial court did not err when it granted declaratory judgment concerning
the Deed Without Warranty ................................................................................... 6
2. The trial court did not abuse its discretion by awarding attorney fees to the
Bexar-Medina-Atascosa Counties Water Control & Improvement District No. 1 7
were ............. 9
B. .... 14
6
INDEX OF AUTHORITIES
Cases
Amaro v. J!Vilson County, 398 S.W.3d 780 (Tex.App.-San Antonio 2011, no pet) 8,
14
Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997) .. 9
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ...................................................... 9
City ofLaredo v. Buenrostro, 357 S.W.3d 118 (Tex.App.-San Antonio 2011, no
pet.) ......................................................................................................................... 9
Nobles v. Jvtarcus, 533 S.W.2d 923 (Tex. 1976) ...................................................... 7
Oake v. Collin County, 692 S.W.2d 454 (Tex. 1985) ............................................... 9
R.R. Comm'n ofTex. v. Torch Operating Co., 912 S.W.2d 790 (Tex. 1995) ........... 9
Tony Gullo A1otors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2007) ....................... 13
Wells Fargo Bank, N.A. v. O'Brien, 458 S.W.3d 912 (Tex. 2015) .................... 8, 14
Statutes
Tex. Civ. Prac. & Rem. Code§ 37.004(a) ................................................................ 6
Tex. Civ. Prac. & Rem. Code§ 37.009 .................................................................... 8
Tex. Disc. R. Prof. Conduct 1.04 ............................................................................ 10
Rules
Tex. R. App. P. 38.2(a)(l)(B) ............................................................................................ iii
Tex. R. App. P. 9.4 ............................................................................................................ 18
Tex. R. Civ. P. 37 ............................................................................................................... iii
Tex. R. Civ. P. 39 ............................................................................................................... iii
R. . P. 60 ..... .......... .. .. m
STATEMENT OF THE CASE
The Appellees are satisfied with the Appellants' statement of the case,
except for its omission of Bexar-Medina-Atascosa Counties Water Control &
Improvement District No. 1's intervention as an indispensable party. Tex. R. App.
P. 38.2(a)(l)(B); see Tex. R. Civ. P. 37, 39(a)(2), 60.
ISSUES PRESENTED
1. The trial court did not err by granting summary, declaratory judgment
under Chapter 37 of the Texas Civil Practice & Remedies Code, and the judgment
must be affirmed.
2. The trial court did not abuse its discretion by awarding attorney fees to
the Bexar-Medina-Atascosa Counties Water Control & Improvement District No.
1, and sufficient evidence supported the amount of the award.
STATEMENT OF FACTS
F.D. and Helen Franks owned property adjacent to Medina Lake. They sold
the property to John and Debra L. Lance. 1 The Franks also created a Deed Without
Warranty (DWW) to 0.282 acres of property they did not own and conveyed it to
the Lances. The DW\V property extends downslope from the Lance's property
toward the Medina Lake pool. The Lances began to take measures to exclude
other persons from the property described by the DWW.
There is no record evidence of any chain of title passing the property
described in the DWW to F.D. and Helen Franks. The Franks simply created the
DWW out of thin air, as set forth in greater detail in the Brief filed by Appellees
Judith and Terry Robinson, Gary and Brenda Fest, Virginia Gray and Butch
Townsend (the Robinson Appellees).
The Bexar-Medina-Atascosa Counties Water Control & Improvement
District No. 1 (BMA) has historically and consistently asserted an ownership
Medina
1
are as
may be used by the persons, like the Lances and the Robinson Appellees, who own
lake property above the 1084' elevation.
The DW\V describes land in which the BNIA asserts an ownership interest
Although the BMA contends it is the fee owner of the property in question, that
matter was not part of the trial court's judgment and is not before this court on
appeal.
The Robinson Appellees sued the Appellants after the Lances took measures
to exclude them from the DWW property. After BMA was identified as an
mdispensable party, it mtervened in the lawsuit to seek declaration under Chapter
37 of the Texas Civil practice & Remedies Code. BMA asked the trial court to
declare that the DWW did not convey any legal or equitable rights from the Franks
to the Lances. 2
The issue of the made-up DWW was raised in a motion for partial summary
judgment filed by the Robinson Appellees against the Appellants before BMA
motion was
(RR
to
them repetitively and serial rehearings when they disagreed with the court's
rulings.
The I 98th Judicial District Court, Bandera County, Texas, eventually heard
the motion for partial summary judgment and granted it on June 11, 2014. The
judgment declared that the DWW
from the Franks as grantors to the Lances as grantees (recoded in
Volume 915, Page 86, of the Bandera! County real property
records)("Deed Without Warranty"), purporting to convey the Franks'
interest in a described .282-acre parcel of land ("disputed area") to the
Lances, did not convey any ownership or other interest in the
described property to the Lances.
(Appx. Tab A) The district court severed the partial summary judgment from the
remaining issues on June 12, 2014. (Appx. Tab D)
On September 5, 2014, BMA moved for its attorney fees and for entry of
final judgment on the severed claims. (CR 5-11) The court heard BMA's motion
on September 17, 2014.
The the on attorney established that BMA incuiTed
over In (RR 1)
(RR or
BMA who are
"'~'"'" as attorneys, to handle certain tasks the supervision
of the firm's attorneys. (RR 68-69, 74) These persons' services were billed at a
rate of $75 per hour. All of the firm's time was billed in tenth-of-an-hour
increments, and all of the firm's activities were itemized and described in detail in
the billing records introduced in evidence at the attorney fee hearing. (RR 72, Exh.
I-1)
The uncontroverted testimony before the court conclusively established that
BMA's counsel economized legal services as much as possible. BMA's legal
expenses were minimized by assigning certain tasks to law clerks and paralegals at
a lower hourly rate than those services would have been charged to BMA had the
firm's attorneys done them. (RR 65-66, 68-69, 72-73) Similarly, the Robinson
Appellees had already filed a motion for partial summary judgment on the
declaratory before court, so BMA's counsel chose not to amplify legal
a same (RR
BMA's declaratory judgment claim, Bl\1A's attorney fees totaled 1,025.00. (RR
78)
The district court entered final judgment on the severed claims. (Appx. Tab
E) It awarded BMA $31,025.00 in attorney fees, plus attorney fees in the amount
of $10,000.00 should BMA prevail on appeal, and an additional $5,000.00 should
the Texas Supreme Court request a response from BMA concerning any petition
for review Appellants might file in that forum. (!d.) Appellants noticed this
appeal.
SUMMARY OF THE ARGUMENT
The trial court's declaratory judgment should be affirmed. The trial court
correctly declared that Appellants' Deed Without Warranty conveyed no
ownership in real property from the Franks to the Lances. The deed purported to
describe and convey, without warranty, property in which BMA claimed an
interest. There was nothing, other than the conjured deed, in the Appellants' title
BMA
it
demanded substantial attorney time and labor. Counsel, a seasoned litigator who
has represented the BMA for a decade-and-a-half, actively participated in the case
and billed his time at a rate at or below the reasonable rate for similar services in
the trial court venue. Counsel's time expenditures were conservative rather than
exaggerated, and he employed cost-saving measures, such as tasking supervised
non-lawyers for certain activities. BMA only sought fees for services that
advanced its declaratory claims, and the resulting judgment favored BMA.
The trial court did not abuse its discretion by determining that BMA' s fees
were equitable and just and deciding to award them against Appellants. Fee-
shifting was justified by the positions taken by and conduct of the Appellants
during the litigation. But most importantly, the attorney fee award was equitable
and just because the entire case was made necessary by Appellants' questionable
decision to prepare and transfer a deed to property they did not own, and then dig
in and fight.
ARGUMENT
1. The trial court did not err when it granted declaratory judgment
concerning the Deed \Vithout \Varranty
under a deed or
37.004(a). Bl\1A had in interest in the D\VW because the fabricated document
conflicted with BMA's ownership claims to the property. Most of Appellants'
brief concerns whether the BMA or any of the other Appellees has title to the
property in question. 3 But the trial court's judgment did not determine or declare
who has title to the property. The Appellees did not seek that relief. Instead, the
trial court judgment declared that the DWW conveyed no ownership in real
property from the Franks to the Lances. For the reasons set forth in the Robinson
Appellees' brief on the merits, which BMA adopts and incorporates, the
declaratory judgment concerning the DWW should be affirmed.
2. The trial court did not abuse its discretion by awarding attorney fees to
the Bexar-Medina-Atascosa Counties Water Control & Improvement
District No. 1
The Appellants argue that unnecessary fees can never be reasonable, and the
only fees necessary to the trial court's judgment involved drafting the motion for
summary judgment and preparing for a temporary injunction hearing early in the
case. They argue that the case was simple and should not have required as much
effort as BNIA's counsel expended. They argue that BN1A freely chose to
participate in the litigation; since Appellants did not bring BMA into the case, they
don't think they should be responsible for BMA's legal fees. And they argue the
attorney fee award to BMA is unjust and inequitable because BMA did not draft
the motion for summary judgment and has not yet secured any relief. None of the
Appellants' arguments has merit.
In a declaratory judgment action, the trial court, in its discretion, "may
award costs and reasonable and necessary attorney's fees as are equitable and just."
Tex. Civ. Prac. & Rem. Code § 37.009. The trial court's discretion extends so far
as to support an award of attorney fees to a non-prevailing party, if the award is
equitable and just. Wells Fargo Bank, NA. v. O'Brien, 458 S.W.3d 912, 916 (Tex.
2015); Amaro v. Wilson County, 398 S.W.3d 780, 789 (Tex.App.-San Antonio
2011 no pet).
Declaratory Judgments IS
s rna
s
action must be affirmed absent a clear showing that the court abused its
discretion. Bocquet v. Herring, 972 S.\V.2d 19, 21 (Tex. 1998); Oake v. Collin
County, 692 S.W.2d 454, 455 (Tex. 1985). Whether fees are equitable and just are
matters of law and reviewed de novo. Bocquet, 972 S.W.2d at 21.
A. BMA 's attorney fees were reasonable and necessary
Attorney fees awarded under the Declaratory Judgments Act must be
reasonable and necessary, a fact question. Bocquet, 972 S.W.2d at 21. Under the
substantial evidence standard of review, an attorney fee award will not be disturbed
if "more than a mere scintilla" of evidence supports the reasonableness of the
award. R.R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792-93
(Tex. 1995); City of Laredo v. Buenrostro, 357 S.W.3d 118, 122 (Tex.App.-San
Antonio 2011, no pet.) (Discussing substantial evidence review). Without more
than a scintilla of evidence of the reasonableness and necessity of the attorney fees,
a court abuses its discretion if it awards them. See Bocquet, 972 S.W.2d at 21.
BMA's were reasonable and necessary. Reasonableness is
m
mclude:
( l) the time and labor required, the novelty artd difficulty of the questions
involved, and the skill required to perform the legal service properly;
(2) the likelihood ... that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty
of collection before the legal services have been rendered.
Arthur Anderson, 945 S.W.2d at 817, citing Tex. Disc. R. Prof. Conduct 1.04.
The roots of this cause may have been uncomplicated [RR 100-1 03 ], but it
did not remain simple. The issues multiplied in intensity and complexity, and
additional parties appeared and amplified the proceedings. The litigation
demanded a substantial amount of attorney attention, time and labor. (RR 100-103,
122-23). Even Appellants' counsel testified at the attorney fee hearing that the
case involved difficult issues and unforeseen complexities, and that it takes time
lawyers Her testimony that her own
were BMA' SIZe
once. The
on
the attorney fee hearing ~ including Appellants' counsel agreed that it is
appropriate for an attorney to bill for the time it takes to prepare for hearings,
including reading motions and reviewing the authorities cited in the motions and
briefing, and understanding how the authorities apply to the facts in issue. (RR 74,
116, 124-25) The case went to mediation twice each time requiring counsel to
devote time to preparation and attendance.
The testimony and evidence at the attorney fee hearing left little doubt that
the Appellants' litigation tactics influenced the amount of BMA's attorney fees.
Those tactics mcluded
the excessive briefing and rehearings that the [Appellants] engaged in
this case. And if you look through the billing, you will see that there
will be, you know, a 30, 40-page brief cited by opposing counsel.
They will cite 40 or 50 cases in it. My law clerk has to pull all those
cases, Shepardize the cases, make sure they're good law. There' is
time billed for that. And I have to review the cases to see what is
being argued here and what is the relevance to the case. . . . Three
months later when we have a rehearing on that, we have to do it all
over agam. It doesn't take quite as long, but I still have to review
things.
(RR l1 should cause
s counsel was m m which the
11 0)
that BMA's counsel devoted well over 200 hours~ more than a solid month of 40-
hour work weeks ~ of billable time to the declaratory 1ssue alone. (RR 66, Exh
I-1) The testimony heard by the trial court was sufficient evidence that BMA's
counsel likely missed other professional opportunities because of the amount of
time it took to prosecute BMA's interests in this cause.
It is true that BMA's counsel did not draft the motion for summary
5
judgment, as Appellants argue. Appellants' argument seems to suggest that BMA
should have drafted a separate motion for summary judgment and would have been
justified in recovering attorney fees for doing so. They may be right, but it is clear
that BMA's decision not to duplicate efforts by researching and drafting a separate,
redundant motion benefitted the Appellants by reducing the attorney fees awarded
against them. 6
BMA's choice not to pursue a litigation strategy that would have resulted in
a larger attorney fee award against the Appellants does not support the denial of
BMA's not bill drafting
fees to BMA altogether, as the Appellants argue. And regardless who drafted the
motion for partial summary judgment, BMA's counsel was responsible for reading
the motion, responses, replies, supplements, and briefs. BMA's counsel had to
read, apply and/or distinguish the authorities cited in those instruments, prepare for
the hearing, argue at the hearing and argue it all over again when the Appellants
moved for rehearing or demanded a new trial. (RR 85, 88-89, Appx. Tab F) Since
BMA's counsel did not draft Appellants' response and briefing in opposition to the
motion for partial summary judgment either, should fees for reading and analyzing
those instruments be excluded, too? If BMA had sought or recovered attorney fees
for drafting a motion it did not write, authorship might matter. But the trial court
awarded fees for what was done, not what wasn't done.
Appellants argue that attorney fees should only be awarded for developing
evidence for the temporary injunction hearing and drat1ing the motion for summary
judgment, since those are the only activities that directly produced the judgment.
Is not supported
Tony Gullo A:fotors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2007). The record
shows that Appellants cluttered the path to relief in this case with a lot of obstacles.
They cannot, then, argue that it was unnecessary and unreasonable for BMA to
incur legal costs to overcome them.
The evidence is sufficient to show that the attorney fees awarded to BMA
were reasonable and necessary under every one of the Rule 1.04/Anderson factors
relevant to this cause.
B. The attorney fee award to BMA is equitable and just
Appellants argue that the attorney fees awarded to BMA are unjust and
inequitable. They argue that the Appellants did not sue BMA or cause it to be a
party to the litigation, so they should not be responsible for BMA's fees. Under
that argument, however, a defendant would rarely be subject a fee-shifting
judgment because defendants usually don't invite potential plaintiffs to sue them.
In a related argument, Appellants also claim that the attorney fee award was
in the trial
D\VvV and asked for attorney fees under the Declaratory Judgments Act The case
proceeded to disposition, where the trial court granted judgment awarding the
declaratory relief and attorney fees BMA pleaded tor. Appellants' 'prevailing
party' argument is not supported by Texas authorities concerning fee awards in
declaratory judgment actions, but even if the law supported Appellants' theory, the
record does not: BMA was a prevailing party.
Appellants contend that it's just not right to award BMA attorney fees when
BMA did not draft the motion that resulted in the judgment That argument is
addressed above, concerning the reasonableness and necessity of BMA's attorney
fees. But even if Appellants' argument were credible, how would BMA be any
different than a party who wins judgment after trial on the merits a party who
obtained relief without drafting a motion for summary judgment or anything else
other than perhaps a petition and a jury question?
On the Issue of equity and justness, Appellants' argument fails to address the
lll room:
an
If equity and justice ever warranted an upward adjustment to the lodestar, this is
the case.
The attorney fee award to BMA was obviously equitable and just; therefore,
the trial court did not abuse its discretion by deciding to award reasonable and
necessary attorney fees to BMA in the amounts set forth in the Amended Award of
Attorney Fees and Final Judgment. (Appx. Tab E)
PRAYER
BMA prays the judgment of the trial court will be affirmed.
Respectfully submitted,
Edward T. Hecker
GOSTOMSKI & HECKER, P.C.
State Bar No. 00787668
607 Urban Loop
San Antonio, Texas 78204-3117
(21 0) 222-9529
ATTORNEY FOR APPELLEE,
BEXAR-MEDINA-ATASCOSA
CERTIFICATE OF SERVICE
I certify this Brief has been served on the persons below through the court's
mandatory e-filing system and via email on the 8th day of July, 2015.
Cynthia Cox Payne
Texas Bar No. 24001935
1118 Main Street
Bandera, Texas 78003
(830) 796-7030 - Phone
(830) 796-7945 Fax
cpayne@paynelawfinn.net
Dan Pozza
State Bar No. 16224800
239 East Commerce Street
San Antonio, Texas 78205
(21 0) 226-8888 Phone
(210) 224-6373- Fax
danpozza@yahoo.com
Stephan B. Rogers
Ross S. Elliott
Rogers & Moore
309 Water Street, Suite 114
Boerne, Texas 78006
Attorney for Plaintiffs
srogerslaw@gmail.com
CERTIFICATE OF COJ\tiPLIANCE
By his signature, below, counsel for BMA certifies that this brief:
1) contains fewer than 4,000 words, excluding parts of the brief
exempted by Tex. R. App. P. 9.4(i)( 1) , and therefore complies with
the type-volume limitation ofTex. R. App. P. 9.4(i)(2)(D); and
2) complies with the typeface requirement of Tex. R. App. P. 9.4(e)
because it was prepared in a conventional, 14-point font typeface in
the text and footnotes.
Edward T. Hecker